IN THE CASE OF:	  

		BOARD DATE:	        5 August 2008

		DOCKET NUMBER:  AR20080008254 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to show he elected not to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states that he and his spouse elected not to participate in the SBP; however, when they completed the DD Form 2656 (Date for Payment of Retired Personnel), she erroneously entered the date "20061214" instead of "20071214," resulting in a "default" spouse coverage based on the full amount.

3.  The applicant provides a copy of his DD Form 2656, dated 14 December 2007, and a self-authored statement, dated 21 April 2008, in support of his application.

4.  On 10 July 2008, the applicant submitted a notarized statement by his spouse, dated 7 July 2008, concurring with his election not to participate in the SBP.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired command sergeant major (CSM) who entered military service on 5 February 1972, held various military occupational specialties and was placed on the retired list on 1 January 2008.

2.  The applicant’s DD Form 2656, dated 14 December 2007, shows he elected “Not to participate in the SBP" and placed an "x" in Item 26g (I Elect Not to Participate in the SBP).  He further authenticated this form by placing his signature in Item 32a (Member Signature) and the date "20071214" in Item 32b (Member Date Signed).  Furthermore, the witness also authenticated this form by placing her signature in Item 33a (Witness Signature) and the date "20071214" in Item 33c (Witness Signature)

3.  The applicant's DD Form 2656 further shows that the applicant's spouse concurred with the SBP election that the applicant made; however, she erroneously entered the date "20061214" instead of "20071214" in Item 30a (Spouse Date Signed).  Furthermore, the same witness who authenticated the applicant's signature, also erroneously entered the date "20061214" instead of "20071214" in Item 31c (Witness Date Signed):

4.  As a result of the two conflicting dates entered on the DD Form 2656, according to the Defense Finance and Accounting Service (DFAS)-Cleveland, Ohio, the applicant's coverage defaulted to a "Coverage Based on Full Gross Pay" and premiums are being collected from the applicant's pay based on the full amount. 

5.  The DD Form 2656 is used to collect information needed to establish a retired/retainer pay account.  Section XI (Spouse Concurrence) of this form is required to be completed when a member is married and elects child(ren) only coverage; does not elect full spouse coverage; or declines coverage.  The date the spouse's signature in Item 30b must not be before the date of the member's signature in Item 32b.

6.  On 15 July 2008, the applicant submitted a notarized statement, signed by his spouse, concurring with his election not to participate in the SBP.

7.  Section XI of the DD Form 2656 states that Title 10 U.S. Code, Section 1448 requires that an otherwise eligible spouse concur if the member declines to elect SBP coverage, elects less than maximum coverage, or elects child only coverage.  Therefore, a member with an eligible spouse upon retirement, who elects any combination other than Items 26a or 26b and 27a, must obtain the spouse's concurrence in Section XII.  A Notary Public must be the witness.
In addition, the witness cannot be named beneficiary in Section V, VIII, or IX.  Spouse's concurrence must be obtained and dated on or after the date of the 
member's election, but before the retirement/transfer date.  If concurrence is not obtained when required, maximum coverage will be established for your spouse and child(ren) if appropriate.

8.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage. 
9.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll. 

10.  Department of Defense Instruction 1332.42, Survivor Annuity Program Administration, requires that spousal consent be notarized in the case of a member electing less than the maximum SBP coverage or declines coverage.  The signature of the spouse must be notarized.  The requirement to have the spouse's signature notarized is not to suggest that the spouse has received additional counseling regarding the option being selected; it simply provides clarification that the spouse signed the form.

DISCUSSION AND CONCLUSIONS:

1.  It is clear that the applicant and his spouse elected not to participate in the SBP.  However, when he completed the DD Form 2656, his spouse and the witness entered the incorrect date of signature in Items 30b and 30c.  As a result, his SBP coverage defaulted to the maximum coverage. 

2.  Any change in the current level of coverage, resulting from what appears to be an administrative error in this case, or otherwise, requires written and notarized concurrence by the spouse.  His spouse submitted a notarized statement concurring with his election not to participate in the SBP.

3.  In view of the foregoing evidence, and in the interest of equity, it is now appropriate to grant the applicant relief by correcting his SBP enrollment to show he elected not to participate and reimbursing him all premiums paid since the date of his retirement, if any. 

BOARD VOTE:

__xxx___  __xxx___  __xxx___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing that the applicant, with his spouse's concurrence, elected not to participate in the SBP prior to his retirement; and

	b.  adjusting the applicant's account and refunding any SBP premiums as a result of this correction.


															XXX
      ______________________
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008254



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ABCMR Record of Proceedings (cont)                                         AR20080008254



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